Infinity Investment Group Holdings Ltd v Queenstown Lakes District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeR G Whiting,Environment Judge
Judgment Date28 Apr 2010
Neutral Citation[2010] NZEnvC 234
Docket NumberENV-2009-CHC-46

Decision No. [2010] NZEnvC 234

BEFORE THE ENVIRONMENT COURT

court:

Environment Judge R G Whiting sitting alone under s 279 of the Act

ENV-2009-CHC-46

In the Matter of the Resource Management Act 1991

In the Matter of Appeals Under Clause 14 of the First Schedule to the Act

Between
Infinity Investment Group Holdings Limited
Willowridge Developments Limited
Orchard Road Holdings Limited
(Env-2009-Chc-46)
and
Remarkables Park Limited
(ENV-2009-CHC-48)
Five Mile. Holdings Limited (In Receivership)
(Env-2009-Chc-50)
Appellants
Queenstown Lakes District Council
Respondent
Appearances:

Mr C N Whata and Ms J R Kirby-Brown for Infinity Investment Group Holdings Limited, WillowriClge Developments Limited and Orchard Road Holdings Limited

Mr J D Young for Remarkables Park Limited

Mr W P Goldsmith for Five Mile Holdings Limited (in receivership)

Mr M A Ray and Mr GM Todd for Queenstown Lakes District Council

Affordable housing — whether plan change requiring developers to make provision for affordable scope within the scope of the Resource Management Act 1991 (“RMA”) — whether plan change was prohibited by s74(3) (must not have regard to trade competition) — whether Affordable Housing Enabling Territorial Authorities Act 2008 precluded matter from being dealt with under RMA — whether rules of plan change related to a resource management purpose — whether it was a plan change, a license, a subsidy or a tax.

The issues for the Court's determination were:

  • 1. Was PC24 within the scope of the Resource Management Act (“RMA”)?

  • 2. Did PC24 come within the prohibition in s74(3) RMA (the council must not have regard to trade competition)?

  • 3. Did the Affordable Housing: Enabling Territorial Authorities Act 2008 (AHA) prevent affordable housing from being addressed under the RMA?

  • 4. Were the rules in PC24 related to a resource management purpose?

  • 5. Was PC24 a license, a subsidy or a tax

Held:

  • (1) Scope of the RMA and PC24: The starting point was to consider whether PC24 met the purpose of a district plan as specified by s72, which was to assist territorial authorities in carrying out their functions in of order to achieve the purpose of the Act. PC24 fell within the Council's functions, as it was a response to constraints on the use and development of land. At a broad level, the Change promoted the sustainable management of land and housing, enabling people to provide for their wellbeing while also remedying or mitigating the effects of constrained land use on people and communities. The Council had to comply with s74(1) (matters to be considered when preparing and changing a plan) which included meeting its obligations under the s32 (appropriateness of plan change) analysis.

  • (2) Prohibition against having regard to trade competition: Section 74(3) as it applied before 1 October 2009 provided that the Council must not have regard to trade competition (PC24 predated the 2009 insertion Part 11A into the RMA). The Council did not have regard to rivalrous behaviour between commercial opponents, although it might be said that it had regard to the effect of competing uses for land arising out of its own plan provisions. It did not seek to regulate competition between identified competitors through PC24. Even if trade competition effects were to arise from the proposal, the Council was required to take into account the significant economic and social effects arising from PC24.

  • (3) Relationship between the Acts: There must be an inconsistency before it became necessary to resolve conflicting provisions of a statute ( Stewart v Grey County Council). Where two statutes dealt with the same subject matter, the proper approach was to give effect to each without creating conflict ( Director of Civil Aviation v Planning Tribunal). There was no inconsistency. The AHA dealt specifically with the narrow subject matter of affordable housing. One its two purposes was to “enable a territorial authority, in consultation with its community, to require persons doing developments to facilitate the provision of affordable housing. The issue was whether the purpose of the RMA allowed for affordable housing to be addressed. Part 2 used deliberately open language. Provision for affordable housing may promote the sustainable management of land and housing, enabling people to provide for their wellbeing while also remedying or mitigating the effects of constrained land use on people and communities. The AHA made provision for the resolution of conflicts that might arise between a territorial authority's affordable housing policy and its district plan, thereby identifying the potential for overlap with the RMA, and enabling effect to be given to both statutes.

  • (4) Rules related to a resource management purpose: the objectives, policies, and rules of PC24 were in contention, but the court was not prepared at this stage of the proceedings to hold that the rules would not be necessary in achieving the RMA's purpose.

  • (5) License, and/or a subsidy, and/or a tax: There was no economic evidence adduced to address any of those terms and the court declined in its absence to determine that PC24 amounted to any of them.

    PC24 was not ultra vires and appeals were to be heard at a substantive hearing. Issues relating to whether PC24 amounted to a license, a subsidy or a tax might be relevant to the hearing.

DECISION OF THE COURT ON PRELIMINARY QUESTIONS OF LAW
  • A. Plan Change 24 falls within the scope of the RMA.

  • B. Plan Change 24 does not come within the prohibition of section 74(3).

  • C. The Affordable Housing: Enabling Territorial Authorities Act 2008 does not prevent affordable housing from being addressed under the RMA.

  • D. The proposed rules relate to a resource management purpose.

  • E. Whether PC 24 is a licence, and/or a subsidy, and/or a tax is a question of fact, which may be determined at the substantive hearing.

REASONS
Introduction
1

Plan Change 24 — Affordable Housing is a proposal by the Council to address its concerns about the effects that a shortage of affordable housing is having on the welfare of the community. Plan Change 24 is the mechanism Council has chosen to introduce affordable housing into the policies of the District Plan so that it can become a relevant matter when plan changes are proposed as well as when resource consent applications are considered. 1

2

There are three extant appeals. The appellants have raised numerous issues in their notices of appeal. However, counsel for the respondent in a memorandum dated 27 July 2009 considered that these could be reduced to four general issues that would need to be considered by the Court, namely:

  • 1. Whether affordable housing is a matter that can be addressed in the context of the Resource Management Act 1991;

  • 2. Whether or not there is an affordable housing shortage in the district;

  • 3. Whether or not intervention using the planning process is appropriate;

  • 4. Whether the mechanisms included in Plan Change 24 are an appropriate response to the problem.

3

Counsel for Infinity, by memorandum dated 28 October 2009 sought leave for the consideration of two preliminary questions of law:

  • 1. Is QLDC empowered by the RMA to require new development to subsidise affordable housing by the imposition of financial contributions under amendments 3 to 9 of Proposed Plan Change 24?

  • 2. Is QLDC prohibited by s 74(3) of the RMA from requiring new development to subsidise affordable housing in order to mitigate an effect of competition for land under amendments

  • 3. to 9 of Proposed Plan Change 24?

4

Counsel for Remarkables Park, by memorandum dated 4 November 2009 sought leave for the Court to determine the following question of law:

1. Does the RMA empower the Council to direct that developers provide or subsidise affordable housing?

5

This question of law is similar to that advanced by counsel for Infinity, but raises a broader question as to the purpose of the RMA and the council's role under the RMA.

6

By a procedural decision dated 16 November 2009, Judge Jackson granted leave for the preliminary questions of law to be heard by way of interlocutory proceedings. These were heard in Queenstown on 28 April 2010.

Plan Change 24
7

Counsel for the respondent summarised how Plan Change 24 would work, as follows: 2

  • [16] PC 24 proposes to introduce two objectives in section 4.9 (District-wide Issues), namely:

    Objective 1 — Access to Affordable and Community Housing:

    To provide a range of opportunities for low and moderate income Resident Households and Temporary Worker Households to live in the district in accommodation appropriate for their needs.

    Objective 2 — Quality of Affordable and Community Housing:

    To ensure the provision of high quality Affordable and Community Housing in proximity to places of work, transport and community services.

  • [17] These objectives are supported by the following policies:

    Objective 1 policies:

    • 1.1 To assess the impact of the development and/or subdivision on the supply of and demand for Affordable and Community Housing, and whether a contribution towards Affordable and Community Housing is necessary to mitigate any adverse effects and/or impact of the development and/or subdivision.

    • 1.2 To ensure that the Affordable Housing demand generated by the development and/or subdivision is met.

      Objective 2 policies:

    • 2.1 To ensure that Affordable and Community Housing is located within the urban settlements of the district.

    • 2.2. To ensure that Affordable and Community Housing is well designed and energy efficient.

    • 2.3 To avoid the concentration of Affordable and Community Housing with provisions for its spread throughout a development and the urban settlements of the district.

  • [18] The primary method introduced by PC 24 is the requirement for an Affordable and Community Housing Assessment to be completed as part of any future plan changes and in certain resource consent...

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